In Depth

The Indiana Supreme Court handed down two opinions Wednesday in which the high court expressly adopted the "prison mailbox
rule" and determined a majority of the Indiana Parole Board constitutes the full parole board when making final decisions.

Even though the state has regularly used the "prison mailbox rule" to determine whether court filings made by prisoners
are timely under appellate rules, the Supreme Court never expressly adopted the rule. The high court did so in Regunal Dowell v. State of Indiana, No. 32S01-1003-PC-136, requiring that litigants must still
provide reasonable, legitimate, and verifiable documentation of the filing.

Dowell appealed the post-conviction court's denial of his motion to correct error. He claimed he put the motion in the
correctional facility's mail system within the 30-day deadline, although it wasn't file stamped by the county clerk
until two days later. The Indiana Court of Appeals affirmed the post-conviction court.

The high court went through several previous cases involving the mailbox rule and explained that pro se prisoners need to
provide reasonable, legitimate, and verifiable documentation supporting the claim that a document was timely submitted to
prison officials for mailing. When the proof is lacking, the courts can't rule the filing was timely. Under Indiana Trial
Rule 5, the mailbox rule applies when the court can see the prisoner used certified mail, return receipt requested, and deposited
the mailing by or before the filing deadline.

But Dowell used regular mail, and had no evidence to show he timely filed his motion, so the trial court appropriately date-stamped
it on the day it arrived in the clerk's office. The Supreme Court dismissed his appeal because it wasn't timely filed.

In Kevin S. Varner v. Indiana Parole Board, No. 45S04-0909-CR-407, the justices held that
a majority of the Indiana Parole Board constitutes the "full parole board" under the statute governing final decisions
that require the full parole board to make the determination. Only four members voted on whether Kevin Varner should be paroled;
two voted yes, two voted no, and the fifth member wasn't present. Because he didn't receive a majority, he asked if
there could be a rehearing so the fifth member could cast a vote, but the board denied his request. The Court of Appeals held
that all five members were required by statute to vote on his parole.

The phrase "full parole board" isn't defined in Indiana Code Section 11-13-3-3(b), but the high court concluded
it means that just a majority must vote, and not all five members. Reading the statute that way comports with the legislature's
rules of statutory construction and interpreting it that way is supported by the board's administrative rules, wrote Justice
Frank Sullivan. The justices also compared the statute to those governing workers' compensation, in which the courts have
repeatedly held that a decision by the "full board" doesn't mean all five members participate in the hearing
and final award, as long as a majority of the board approves the finding and award.

"...we believe the interpretation by the Court of Appeals would limit the ability of the Board to discharge its duties
to a degree well beyond that which we believe the Legislature intended," wrote Justice Sullivan. "As the State points
out, to require all Board members to vote on each parole decision would cause unnecessary delay in the grant of parole."

The Supreme Court vacated the Court of Appeals' opinion except for the portion addressing subject matter jurisdiction
and denied Varner's request for a writ of mandamus.

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